BirdPulse.com Terms of Service

BirdPulse.com is a website for sharing bird facts and photos with other bird lovers. It is operated by BirdPulse, Inc., a privately held company in Toronto, ON, Canada. By using the BirdPulse.com website, you accept and agree to be bound by the following terms and conditions (the "Terms of Service"). Nothing in these Terms of Service should be construed to confer any rights to third party beneficiaries.

Changes to BirdPulse.com terms and conditions

We reserve the right to modify or terminate the BirdPulse.com service for any reason, and without notice, without liability to you, any other Member or any third party. We also reserve the right to modify these Terms of Service from time to time without notice. You are responsible for regularly reviewing these Terms of Service so that you will be apprised of any changes.

Eligibility and registration

As part of the registration process, you will be asked to select a username and password and you will be responsible for all activities occurring under your username and for keeping your password secure. We may refuse to grant you a username that impersonates someone else, is or may be protected by trademark or proprietary rights law, or is vulgar, offensive or otherwise inappropriate, as determined by us in our sole discretion.

Appropriate conduct and content; personal use only

The BirdPulse.com service is made available for your personal, non-commercial use only. Businesses, organizations or other legal entities may not use the BirdPulse.com service for any purpose.

You may not use the BirdPulse.com service for any illegal or unauthorized purpose. International users agree to comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data from the United States or your country of residence. You are solely responsible for your conduct and any data, text, information, photos, links and other content ("Materials") that you submit, post, and display on the BirdPulse.com service.

We may, but shall have no obligation to, remove Materials that we determine in our sole discretion are unlawful, fraudulent, threatening, libelous, defamatory, obscene or otherwise objectionable, or infringes or violates any party's intellectual property or other proprietary rights or these Terms of Service.

For your information, since BirdPulse.com is a family site, anything that may be deemed by the BirdPulse community to be obscene will be removed or edited with or without your notice.

Other examples of illegal or unauthorized uses include, but are not limited to:

modifying, adapting, translating, or reverse engineering any portion of the BirdPulse.com service; using any robot, spider, site search/retrieval application, or other device to retrieve or index any portion or the BirdPulse.com service; collecting any information about other Members (including usernames and/or email addresses) for unauthorized purposes; reformatting or framing any portion of the web pages or site images that are part of the BirdPulse.com service; creating user accounts by automated means or under false or fraudulent pretenses; creating or transmitting unwanted electronic communications such as "spam," or chain letters to other Members or otherwise interfering with other Member's enjoyment of the service; submitting Materials of any third party without such third party's prior written consent; directing any user (for example, by linking) to any Materials of any third party without such third party's prior written consent; submitting Materials that falsely express or imply that such Materials are sponsored or endorsed by BirdPulse.com; submitting Materials that infringe, misappropriate or violate the intellectual property, publicity, privacy or other proprietary rights of any party; transmitting any viruses, worms, defects, Trojan horses or other items of a destructive nature; submitting Materials that are unlawful or promote or encourage illegal activity; or submitting false or misleading information.

While BirdPulse.com prohibits such conduct and content on its site, you understand and agree that you nonetheless may be exposed to such Materials and that you use the BirdPulse.com service at your own risk.

BirdPulse.com's proprietary rights

By submitting, posting or displaying any Materials on or through the BirdPulse.com service, you automatically grant to us a worldwide, non-exclusive, royalty-free, right to publicly display or re-display such Materials in other formats not simply limited to websites.

Except as expressly authorized by BirdPulse, Inc., you may not copy, modify, publish, transmit, distribute, perform, display or sell any of BirdPulse.com's proprietary information which includes the sum of all postings and photos to the site. The BirdPulse logo and "BirdPulse.com" are trademarks of BirdPulse, Inc. "BirdPulse: BirdLovers Community" is a registered wordmark of BirdPulse, Inc.

Privacy policy

Our collection and use of personal information is governed by our Privacy Policy. Click here to review the BirdPulse.com Privacy Policy. You understand and agree that BirdPulse.com may access, preserve, and disclose your personal information and the contents of your account if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to comply with legal process or protect the rights and property of BirdPulse.com, its affiliates or the public.

disclaimer of warranties

BirdPulse.com and BirdPulse, Inc. disclaim any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or materials displayed on the BirdPulse.com service. BirdPulse disclaims any and all responsibility and liability for the conduct of any Member.

THE BIRDPULSE.COM SERVICE, AND ALL MATERIALS, INFORMATION (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR MATERIALS OBTAINED OR ACCESSED THROUGH THE BIRDPULSE.COM SERVICES), PRODUCTS AND SERVICES INCLUDED THEREIN ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. BIRDPULSE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Some states do not allow the exclusion or limitation of implied warranties, so the above disclaimers and exclusions may not apply to you.

YOU AGREE THAT YOUR USE OF THE BIRDPULSE.COM SERVICE IS ENTIRELY AT YOUR OWN RISK.

hold harmless and indemnity

You agree to hold harmless and indemnify BirdPulse, Inc. from and against any third party claim arising from or in any way related to your use of the BirdPulse.com service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.

limitation of liability

UNDER NO CIRCUMSTANCES WILL BIRDPULSE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE BIRDPULSE.COM SERVICE, WHETHER OR NOT BIRDPULSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION OF LIABILITY SHALL APPLY (I) WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE BIRDPULSE.COM SERVICE, FROM INABILITY TO USE THE BIRDPULSE.COM SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE BIRDPULSE.COM SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), AND (II) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply to you. UNDER NO CIRCUMSTANCES SHALL BIRDPULSE BE LIABLE TO YOU FOR ANY AMOUNT EXCEEDING ONE THOUSAND DOLLARS ($1000.00).

term and termination

These Terms of Service will apply to your use of the BirdPulse.com service. We may terminate your membership immediately at any time, for any reason. Once your membership terminates, you will have no right to use the BirdPulse.com service. Our proprietary rights, disclaimer of warranties, indemnities, limitations of liability and miscellaneous provisions shall survive any termination of your membership.

notices BirdPulse may provide you with notices regarding the BirdPulse.com service or these Terms of Service by regular mail, email, or postings to this Web site.

miscellaneous provisions

These Terms of Service will be governed by and construed in accordance with the laws of the Provinvce of Ontario, without giving effect to its conflict of laws provisions or your actual state or country of residence. The parties agree to submit to the personal and exclusive jurisdiction of the courts located in the Greater Toronto Area, Ontario. If for any reason a court of competent jurisdiction finds any provision or portion of the Terms of Service to be unenforceable, the remainder of the Terms of Service will continue in full force and effect. You shall not assign these Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without our prior written consent. Any such purported assignment or delegation will be null and void and of no force or effect.

Without limiting the foregoing, under no circumstances shall BirdPulse be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.

These Terms of Service constitute the entire agreement between you and BirdPulse with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Service by a party will be effective only if in writing and signed by a party.

copyright information

It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you believe that your copyright has been infringed on BirdPulse.com Service, please read the following information for filing or responding to a notice of infringement.

To file a notice of copyright notice with us, please send a written communication by fax or regular mail that sets forth the items specified below. If you are not sure whether certain material of yours is protected by copyright, we suggest that you first contact an attorney.

To expedite our ability to process your request, please use the following format:

1. Identify in sufficient detail the material that you believe has been infringed. For example, "The copyrighted work at issue is the image that appears on Sparky's Profile on www.BirdPulse.com/birds/189."
2. Identify the material that you claim is infringing the material listed in item #1 above.
3. Provide information reasonably sufficient to permit BirdPulse.com to contact you (email address is preferred).
4. Provide information, if possible, sufficient to permit BirdPulse.com to notify the user(s) who posted the content that allegedly contains infringing material (email address is preferred).
5. Include the following statement: "I have a good faith belief that use of the copyrighted material described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law."
6. Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
7. Sign the paper.
8. Send the written communication to: BirdPulse, Inc. 2332 West Ham Road, Oakville, ON L6M 4N8

The user(s) who posted the content may make a counter notification. When we receive a counter notification, we will typically forward a copy to the person who filed the original notification and reinstate the material in question.

To file a counter notification with us, please provide a written communication by fax or regular mail that sets forth the items specified below. If you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney.

To expedite our ability to process your counter notification, please use the following format:

1. Identify the specific URLs of material that BirdPulse.com has removed or to which BirdPulse.com has disabled access.
2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, and that you will accept service of process from the person who provided notification to BirdPulse.com of the infringement or an agent of such person.
3. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
4. Sign the paper.
5. Send the written communication to: BirdPulse, Inc. 2332 West Ham Road, Oakville, ON L6M 4N8

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